Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, July 01, 2009

People v. Johndrow (Cal. Ct. App. - July 1, 2009)

Rarely is there a consistent theme for the day. Much less one that spans both the state and federal appellate cases. But today may be an exception.

Glenn Johndrow is on trial, and he wants to testify. He repeatedly and expressly says so, both to his lawyer and to the judge. But the judge doesn't care, and the lawyer won't call him to the stand. That's a clear violation of the defendant's constitutional rights.

Again, a seeminly anomalous result. But then again, we probably do already know how the trial will come out. This one's an SVP case, to the question is whether Johndrow's going to be involuntarily committed potentially forever -- a serious deprivation of liberty -- on the ground that he's a sexually violent predator. But here's just a snippet of the undisputed facts:

"In 1986 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant "volunteered" to take a developmentally disabled 12-year-old boy who was attending the Special Olympics to the bathroom. Once in the bathroom, defendant fondled and orally copulated the boy. Defendant admitted the conduct and stated that prior to taking the boy into the bathroom he had been thinking of finding a child and having sex as soon as the situation presented itself. Defendant said that he enjoyed what he had done and that "he sucks penises every chance he gets."

In 1994 defendant was convicted of sodomy with an incompetent person. Defendant forced a 22-year-old developmentally disabled male onto a bed and "forcibly penetrated his anus with [defendant’s] penis" and threatened to send the "Hell’s Angels" after the victim if he told anyone what had happened. Defendant admitted the sodomy as well as fondling and orally copulating the victim’s penis, but claimed that the acts were consensual and the comment about the Hell’s Angels was a joke.

In 1995 defendant was convicted of lewd conduct with a child under 14 years of age. Defendant admitted twice fondling the penis of, and was caught kissing, the five-year-old son of a woman who was living with defendant and defendant’s wife.

In addition to the above SVP qualifying offenses, defendant also committed several other sexual offenses and had two misdemeanor convictions for sexual misconduct. In 1980 defendant was convicted of lewd conduct with a child after having an eight- or nine-year-old boy orally copulate him while he orally copulated a seven-year-old girl as she squatted on his face.

In 1994 defendant was convicted of misdemeanor sexual battery. He admitted that he repeatedly propositioned a woman at a bus stop, followed her into a public bathroom when she tried to get away from him, put his hand inside her pants, and fondled her vagina. Defendant told Dr. Davis that he was "quite intoxicated" and "out of control" when this happened. In 2003 defendant was found in violation of parole for putting his finger into the anus of a 21-year-old autistic man, conduct that defendant said he liked doing. Defendant believed that sex with a child was "okay" if he perceived the child as consenting. . . ."